Petition

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REPLY

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL MISC CASE NO 3128 OF 2011.

In the matter of

Dr. Harsh Mahajan …Petitioner

Versus

State NCT of Delhi and Another …Respondents

Index

Annexure No	Details	Page no
	Brief Synopsis/ List Of Date Of Events	4-13
	Reply To The Amended Petition	14-70
Annexure D-1	Complete case records Of respondent No 2 `s admission to Jaipur Golden Hospital.	71-103
Annexure D-2	Complaint Dated 6th July 2005	104-106
Annexure D-3	Complaint Dated 12th Mar 2006	107-113
Annexure D-4	Complaint Dated 9th June 2006	114-118
Annexure D-5	Agreement dated 16^th June 2006	119-123
Annexure D-6	Complaint Dated 02 Jan 08	124-131
Annexure D-7	USG Report from Mahajan Imaging center, Jaipur Golden Hospital	132
Annexure D-8	Complaint Dated 10th April 08	133-144
Annexure D-9	Complaint Dated 19 April 08.	145-158
Annexure D-10	Report of raid dated 03 June 08	159-160
Annexure D-11	Reply to RTI dated 16 July 08	161-163
Annexure D-12	15 days notice to the Appropriate Authority	164-166
Annexure D-13	Reply to RTI from central PNDT department dated 14 th Nov 2008.	167-171
Annexure D-14	Template for reporting ultrasound whole abdomen	172-173
Annexure D-15	Copy of statements of the father in law, mother in law of the Respondent no 2 and the Radiologist working in center of Petitioner	174-180
Annexure D-16	103 form F`s submitted for month of April 2005, in May 2005.	181-183
Annexure D-17	Reply Dated 26/05/09 To RTI	184-185
Annexure D-18	File noting of the Appropriate Authority regarding receiving the notice of 15 days	186-187
Annexure D-19	Show Cause Notice Dated 11th July 2008 To The Radiologist	188-190
Annexure D-20	Affidavit of the Appropriate Authority	191-195

Delhi Respondent No 2

Dated Through

Counsel

BRIEF SYNOPSIS/ LIST OF DATE OF EVENTS

28^thNov 2004	The Respondent no 2 got married as per Hindu rites and ceremonies on 28.11.2004 to Dr Kamal Khurana (Accused no 4, in her complaint dated 22/11/08 in court of Chief Metropolitan Magistrate, hence after mentioned as “Complaint”). The Respondent no 2 was subjected to cruelty and violence by her ‘husband and in laws on various counts. However, the details of the cruel behavior are not set out in the present reply as they are already detailed in the various complaints filed by the Respondent no 2 and which are annexed with the Petition as well the present affidavit of the Respondent no 2.
05 Feb 2005	Respondent no 2 came to know that she has conceived
26 Feb 2005	It was revealed to the Respondent no 2 and husband and in-laws that it is a twin pregnancy. The nightmare of the Respondent no 2 became worst when it transpired that the Respondent no 2 was carrying twin babies during the pregnancy and after that her in-laws started pressurizing the Respondent no 2 to go for the sex determination in order to know whether fetuses were male or female.
27 April 2005	That when the Respondent no 2 refused to have sex determination a conspiracy was hatched between the accused persons to get the sex determination of the fetuses. The in-laws of the Respondent no 2 were well aware of the fact that the Respondent no 2 was allergic to egg and whenever Respondent no 2 eats egg, she develops acute abdominal pain and vomiting. In order to fulfill their nefarious designs the brother-in-law of the Respondent no 2 brought a cake on 27.4.05 at about 10-11 p.m. in the night, which was laced with the eggs as, they were aware that the Respondent no 2 was fond of the cakes. The Respondent no 2 was given the said cake to be consumed by her and it resulted in acute abdominal pain with vomiting to the Respondent no 2
28th April 2005 (Annexure D1)	Respondent no 2 was then taken to Jaipur Golden Hospital. It is relevant to mention here that Respondent no 2 made several requests of the husband and other in laws, that if at all she has to be taken to any hospital, then she should be taken to Sir Ganga Ram Hospital, as she was undergoing Anti Natal treatment there. However, her requests were brushed aside. She was taken to Jaipur Golden Hospital casualty. 9:34 a.m. – the Respondent no 2 was admitted to the labor room despite the fact that she was only 16 weeks pregnant. The consent for the admission and treatment was not taken from the Respondent no 2 despite the fact that she was conscious and in a position to give informed consent. The records show that the heart sounds of both the fetuses were normal at the time of admission and during her stay in Jaipur Golden Hospital, clearly implying that the fetuses remained unaffected by the allergy. 10:00 a.m. – The doctor’s notes reveal that the Respondent no 2 was already feeling better by then. The fetal heart sounds noted at this time were also normal. 12:30 noon – The treating gynecologist Dr S.K. Basu was re-informed about the past history of pyelonephritis (acute infection of the kidneys) with recurrent U.T.I. The bare perusal of the records show that the gynecologist ordered KUB ultrasound only at around 12:30 p.m. after taking note of past history of pyelonephritis, by when the Respondent no. 2 was already feeling better. The complete admission case records are annexed with this petition and are marked as ANNEXURE D-1. The Respondent no 2 was subjected to fetal ultrasound under the disguise of a K.U.B ultrasound, without the consent and the knowledge of the Respondent no 2.
28^th April 2005 to 18^th May 2005	After the ultrasonography was done on the Respondent no 2 and it was revealed that the fetuses were females, the behavior of the husband and other in-laws of the Respondent no 2 deteriorated further. Thenceforth she was pressurized for an abortion, which she resisted. In fact, she was subjected to gross physical and mental torture, so that somehow an abortion takes place. It is submitted that till this time the answering respondent was not aware as to from where have the in-laws and the husband of the answering respondent got to know about the fetuses being female and till the time they never admitted having such knowledge.
18th May 2005	The Respondent no 2 was abused following which she developed leaking and pain abdomen. Accused no 4 and 5 denied her medical care and locked her up in the room with an intention to induce abortion.
19^th May 2005	Somehow Respondent no 2 managed to contact her father. And her father immediately contacted the accused no 4 and insisted on shifting her to nursing home. After the discharge from Nursing home, Respondent no 2 shifted to her parental home for the remaining duration of pregnancy to save her twin babies (fetuses) and self.
6th July 2005 (Annexure D2.)	Respondent no 2 made a complaint to Police stating events in a chronological sequence from marriage à conceptionà pressures for sex determinationà pressures to abort àattempt to abort and threat to life à Respondent no 2 shifts to parental home to save her life and babies (fetuses) . The complaint is annexed with the present reply as Annexure D-2.
11th Aug 2005	Amidst all these tortures and brazen attempts to kill the female fetuses, the Respondent no 2 gave birth to twin daughters on 11.8.2005 at Sir Ganga Ram Hospital, and all the expenses were borne by the family of the Respondent no 2.
Feb/March 2006	The Husband of the Respondent no 2 accepted getting sex determination done by him and his family, did not disclose the place where it was done. Therefore the Respondent no 2 had although definite knowledge of being subjected to sex determination test only in month of Feb /March 2006, but she did not have any knowledge of the place where sex determination was done.
12th Mar 2006 (Annexure D3)	Just after attaining knowledge of being subjected to sex determination test got done by Husband and in laws, Respondent no 2 filed a complaint to the S.H.O. Janakpuri stating that “I had repeated ultrasounds during pregnancy and from somewhere my in-laws came to know I am carrying female babies“
9th June 2006	The Respondent no 2 filed a complaint to D.C.P, Crime Against Women Cell outlining the chronological sequence of events including as “Then they came to know that I am carrying twin babies. My mother-in-law started demanding sex determination of the babies. I have a strong suspicion that they got to know about the sex of the babies, because mother in law started demanding that I get one of the babies killed in uterus. My husband asked for D.N.A. testing of the babies saying that it is written in his horoscope that he would have only sons. He also asked me to get an M.T.P. done or take a divorce.” (Annexure D-4)
16^th June 2006 (Annexure D5)	An agreement was signed by the husband and in-laws of the Respondent no 2 in which it is clearly admitted that ” Dr Mitu will not be pressurized for conception to bear sons” and “Dr Mitu will not be asked or forced to go for sex determination of the fetus, if any or sex selective abortion in future by Dr Kamal or anyone from his family.” This Agreement is annexed along with this reply and marked as Annexure D-5
2 Jan 2008 (Annexure D6)	Respondent no 2 made a complaint through email to Mrs Reny Jacob, member Delhi Commission for Women stating that “Then we came to know that I am carrying twin babies. Then my mother in law started demanding sex determination. They got that done by force. Then they started demanding that I get an M.T.P. My mother in law asked me many times to at least get one child killed in uterus. I was kept without food and water. My husband was totally ignoring me and was indulging in watching Pornography all the time. When I developed bleeding and threatened abortion, I was not even allowed to call up my parents for medical help. My mother in law told me that daughters would be a big burden on them, and that I should give one of them up for adoption. Or get them aborted, or at least one of them killed“. The said complaint is annexed with this affidavit and marked as Annexure D-6.
Feb/ March 2008	When Respondent no 2 came across the papers of ultrasound done at Jaipur Golden Hospital dated 28.04.2005, the Respondent no 2 got shocked to see that under the disguise of KUB ultrasound, full fetal ultrasound had been done by the doctor working in the center of the petitioner without the consent and knowledge of the Respondent no 2. The report has been annexed by the Petitioner as Annexure D-7
10th April 2008 (Annexure D-8 )	The Respondent no 2 wrote a complaint to various authorities including National Commission for Women and Health Minister, explaining about the deception and requesting an enquiry into the matter, with assurance of complete co-operation by Respondent no 2 in same. This complaint also mentions the Foetal ultrasound done under deception, without the knowledge and the consent of the Respondent no 2. The Respondent no 2 has requested the authorities to take appropriate legal action against the culprits.
19 April 2008. Annexure-D9	The Respondent no 2 filed a complaint with ACP, crime against women cell mentioning about the deceitfully conducted ultrasound and requested the authorities to take necessary action on her complaint.
08 May 2008	The Respondent no 2 received an email from central PNDT department, Nirman Bhawan informing her the address of the Appropriate Authority to whom she had to file complaint under the PC-PNDT Act.
9th May 2008 (Annexure P6)	When, the Respondent no 2 did not receive any reply/information on the complaint to National Commission for women, Health Minister or from any other agency to the complaint dated 10^th April 2008, than the Respondent no 2 filed a complaint to National Implementation and Monitoring Committee (N.I.M.C) and C.D.M.O requesting them to conduct an enquiry, Complaint dated 09/05/08 to the Appropriate Authority was accompanied with the reports of ultrasounds done at various times at various places during her pregnancy.
21 May 2008	When the Respondent no 2 did not receive any information from office of N.I.M.C and office of C.D.M.O, then the Respondent no 2 filed a R.T.I to know the status of action on her complaint dated 9^th May 2008.
03 June 2008	After the R.T.I filed by the Respondent no 2 a raid was conducted by N.I.M.C on the Jaipur Golden hospital, and in the raid many irregularities in following the provisions of P.C-P.N.D.T act were found. The report of the raid is annexed as Annexure D-10
16 July 2008 (Annexure D11)	The Respondent no 2 received a reply to R.T.I. in which it is clearly stated – “On a surprise visit to Jaipur Golden Hospital along with National Inspection and Monitoring Team on 3/6/2008 records were checked and it was found that the Ultrasonography (KUB) was done on the complainant by Dr.Niten Seth. As per report B/L Renal Hydronephrosis was diagnosed along with 16-weeks of gestation but Form F for the same was not filled. However, Dr.Niten Seth Ultrasonologist had already left the job from Jaipur Golden Hospital. A show cause notice under registered post to him was issued at the address provided by Jaipur Golden Hospital authorities.” Thus it was only after reply dated 16^th July 2008, that it came in the knowledge of the Respondent no 2, that she was subjected to sex determination, at Jaipur Golden Hospital.
18 Oct 08 (Annexure D-12)	The respondent no 2 sent a notice to the Appropriate Authority about her intention to file a case in appropriate court as the Appropriate Authority had not taken any proper action on her complaint.
14 Nov 08 (Annexure D13)	The respondent received a reply to RTI from central PNDT department , whereby it is clearly mentioned that “This complaint was verified by the NIMC during its inspection visit on 03.06.08, along with AA (Appropriate Authority) of NCT of Delhi. The state AA was advised to take further necessary action as provided in the PC-PNDT Act on basis of evidence gathered from the hospital”
20^th Nov. 08	Thus after the Respondent no 2 got to know about the involvement of Jaipur Golden Hospital, Mahajan Imaging Centre and the radiologist working under the petitioner, in sex determination of her fetuses, she filed a case against them before Ld. Chief Metropolitan Magistrate on 20th November 2008. (Complaint case no 327/01/08)
19^thJan 09	Appropriate Authority has also filed a criminal complaint under Section 200 Cr.P.C for offence under section 23 of P.C-P.N.D.T Act, against Dr D.K. Baluja, Director Jaipur Golden Hospital on 19th January 2009, before the CMM.( C.C.No. 33/01/09)
08 June 11	That in the Complaint case no 327/01/08, the trial court has taken cognizance and summoned all the accused persons by order dated 08.06.2011.
19 Sept 2011	The petitioner filed the petition before this Hon`ble court vide Criminal Misc Case No 3128 OF 2011 against the summoning order dated 08.06.2011 and was granted ex party stay without hearing the respondent no 2.
30-Apr-13	During the pendency of the petition, it came to the knowledge of the applicant that in the complaint case bearing no 327/01/08, the accused no 1 (i.e. Jaipur Golden Hospital) was not summoned in the mistaken belief that the Jaipur Golden Hospital has already been summoned in the case no C.C.No. 33/01/09 filed by the government/CDMO. Whereas actually the accused summoned in the C.C.No. 33/01/09 was not Jaipur Golden Hospital, but Dr D.K.Baluja who was the director of Jaipur Golden hospital. After attaining the knowledge by the applicant, filed a petition bearing no CRL.M.C.-1740/2013 under section 482 Cr.P.C before this Hon`ble Court for summoning of accused no 1 i.e. Jaipur Golden Hospital in the complaint case No.327/01/08.
03 May 13	That on 03.05.2013 , this Hon`ble Court was pleased to pass order in CRL.M.C.-1740/2103 “In view of the aforesaid error as pointed out by learned counsel for petitioner, impugned order of 8th June, 2011 is set aside with direction to trial court to pass a speaking order after hearing learned counsel for petitioner afresh.”
28 May 13	That the trial court thereafter has passed fresh summoning order against all the accused persons vide order dated 28.05.2013 and summoned all the accused except accused no 2 (petitioner in this case) and Accused no 3 as they had been granted stay by this Hon’ble court in their petition against the order dated 08.06.2011 (though the order dated 08.06.2011 was itself set aside by the orders of this Hon`ble court and the petitions filed by accused no 2 & 3 had therefore become infructuous).

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL MISC CASE NO 3128 OF 2011.

In the matter of

Dr. Harsh Mahajan …Petitioner

Versus

State NCT of Delhi and Another …Respondents

REPLY OF RESPONDENT NO 2, DR MITU KHURANA TO AMMENDED PETITION FILED BY THE PETITIONER.

That it is stated that any allegation unless specifically admitted, is/are deemed to be not admitted and hence denied.
That the present petition filed by the petitioner before this Hon`ble court is not maintainable as all the issues raised by the petitioner in the present petition are matter of facts and need trial before the trial court.
That the present petition is not maintainable as once it has been established that the records of ultrasound of the Respondent no 2 were not maintained as per the P.C-P.N.D.T Act, the onus to prove that the records were maintained are on the Petitioner and that is a matter of trial. The said facts have been confirmed by the Full bench judgment of Bombay high court in (Mrs.) Suhasini Umesh Karanjkar Vs. Kolhapur Municipal Corporation & Ors. (2011(4) AIR Bom R 326) and in the Double bench judgment of Bombay High court in the matter of Radiological and Imaging Association (State Chapter- Jalna), through Dr. Jignesh Gokuldas Thakker, its PC-PNDT Coordinator for the Indian Radiological and Imaging Association Vs. Union of India (UOI) Through its Secretary, Ministry of Health and Family Welfare and others (Writ Petition No. 797 of 2011) that

“The person conducting ultrasonography on a pregnant woman has to maintain a complete record thereof in the manner prescribed in the Rules and a deficiency or inaccuracy in maintaining such records would amount to an offence, unless the person conducting such sonography is able to show that there was No deficiency or inaccuracy.”

That the present petition is not maintainable as the issues raised by the petitioner by the way of this petition can be raised by the petitioner at the time of framing of charge/argument on point of charge as the trial court has taken the cognizance after recording the pre-summoning evidence of the Respondent no 2 and now the pre-charge evidence is going on and petitioner will have ample opportunity to present his case before trial court.
The petition of the petitioner is based on twisted, distorted, false and fabricated facts as well as on the basis of gross misinterpretation of the law. The Petitioner is guilty of misrepresentation before this Hon’ble Court. Petitioner has made blatant false averments in this petition, supported with an affidavit. Thus, the petitioner is also liable to be prosecuted for Perjury.
The meaningful appreciation of the present petition clearly shows the active collusion of the Petitioner with other co-accused, who subjected the Respondent no 2 to gross cruelties apart from the gruesome act of sex determination of fetuses followed by attempts of female feticide and subsequently attempts to life of Respondent no 2 and her twin infant daughters.
THE VARIOUS FACTUAL AND LEGAL MISREPRESENTATIONS MADE BY THE PETITIONER ARE OUTLINED AS UNDER-
1. Has deliberately misquoted, misread and misinterpreted complaint dated 6 July 2005 made by the deponent.- as it is mentioning the events as they happened in a chronological event.
2. On Issue regarding Limitation : That in the present case the respondent no 2 first time came to know about
  1. Sex determination test being done on the Respondent no 2 in Feb /March 2006. Thereafter immediately a complaint was made by Respondent no 2 on 12/03/06 t0 SHO, Janakpuri. At this point respondent no 2 was unaware as to how, when and where it had been done.
  2. That in month of March 2008, when the respondent no 2 came across the report of ultrasound dated 28/04/05, done in the center of the petitioner, she for the first time came to know that she had been deceived into a fetal ultrasound when she was taken to Jaipur Golden Hospital with the complaint of egg allergy. After that the Respondent no 2 immediately again made complaint dated 10/04/08 to various authorities and agencies empowered to investigate her complaint and take action.

That on 16/07/2008, the respondent no 2 received a reply from the office of the Appropriate Authority that on 28/04/2005, when the fetal ultrasound was done by the employee of the petitioner , no form F for the same was filled. This was the very first time when Respondent no 2, came to know that sex determination was conducted at the imaging center of the petitioner by his employee namely Dr Niten Seth.

On Issue pertaining the maintenance of Form F by radiological establishments conducting ultrasounds of pregnant women
1. The list of Form F for the month of April 2005 sent to the Appropriate Authority on 3rd May 2005, shows that form F of 103 pregnant women who had undergone antenatal ultrasound in Jaipur Golden Hospital were sent to the Appropriate Authority. This list does not mention the Respondent no 2`s name, which itself shows that Form F in respect of the Respondent no 2 was never filled up and never sent to the Appropriate Authorities as per rule 9 (8) of the P.C-P.N.D.T rule. List of names of 103 women annexed as Annexure D-16 certified copies-rota

REPLY TO THE PETITION

MOST RESPECTFULLY SHOWETH:

In reply to the Para 1 of the petition , it is submitted that as on date there is no summoning order dated 08 June 2011 in existence , as the same has been set aside by this Hon`ble court vide order dated 03.05.2013 in CRL.M.C.-1740/2103 , with the direction to the trial court to pass fresh speaking order. On 28.05.2013 the trial court has taken cognizance against all the accused persons and passed fresh summoning order against all the accused persons. But due to the ex party stay granted against the proceedings in trial court in their petitions against the summoning order dated 08.06.2011, the trial court has not summoned present petitioner (Accused no 2) and Dr Niten Seth (Accused no 3)
The self-applauding details regarding the influential status of the Petitioner as mentioned in Para no 2 and 3 of the petition are matter of records. It is accepted and in fact highlighted that the petitioner accepts that at the relevant time, the petitioner being part of a partnership firm was managing the radiological centre at the Jaipur Golden Hospital. This acceptance by the petitioner makes him liable to be prosecuted under section 26 of the PC-PNDT Act.

The petitioner is trying to influence the outcome of the petition by showing his status , power and contacts with the Honored and Esteemed Offices/Organizations of the county (i.e. the President of India, Hon`ble Supreme Court of India , High Court of Delhi and many other organizations/agencies of the country)

It is pertinent to mention that after order of cognizance dated 08.06.2011, the present petitioner/accused used his influential status and became a member of committees to modify and amend the P.C-P.N.D.T Act and the form F vide notice no F. No. V.11011/01/2012-PNDT dated 07.09.2012, without disclosing that he is an accused in the complaint pending under the P.C-P.N.D.T Act.

It is further submitted that Mahajan Imaging Centre being on the panel of Hon’ble Supreme Court of India and Hon’ble High Court of Delhi have been very confidently flouting the laws as is evident from the report of the raid conducted by N.I.M.C on 3rd June 2008 (Annexure D-10), in which in addition to not filing Form F of the Respondent no 2 there were various discrepancies e.g.-

non display of registration Certificate in Ultrasound room (Section 19 (4) of the Act),
non-availability of the P.C-P.N.D.T Act book in the ultrasound room (Rule 17(2) of the P.C-P.N.D.T Rules),

many form F`s not being filled up properly and doctors referral forms not attached with form F. (Section 4(3), Rule 9(4) and Rule 10(1A))

Moreover it is pertinent to mention here that the Petitioner accepts his high and influential status because of which

The CDMO did not conduct a proper enquiry into the complaint of the Respondent no 2.
The enquiry committee in order to save the influential petitioner in the present case did not even bother to question the petitioner despite the fact that the form F for the relevant period was being submitted on the letter head of the petitioner and also he was a partner in the center where the ultrasound was done.

The Respondent no 2 had to run from pillar to post for justice, and justice still continues to elude her, because of the influential and powerful accused persons.

It is only to save the influential and powerful petitioner that the enquiry committee gave a report “there is no circumstantial/direct evidence of sex determination being done” despite noting that the records submitted for that period did not have the form F of the Respondent no 2- which in itself amounts to sex determination as per the section 4, 5 & 6 of PC- PNDT Act.

The same has been stated by the full bench of High court of Gujarat in case titled “Suo Moto vs state of Gujarat , Cri. Reference Nos. 4 and 3 of 2008 (2009 CRI. L. J. 721, (2009)1 GLR 64, MANU/GJ/0717/2008” where the Bench of Hon`ble Judges very clearly ordered that

“7. As seen earlier, the Act and the Rules made there under provide for an elaborate scheme to ensure proper implementation of the relevant legal provisions and the possible loop-holes in strict and full compliance are sought to be plugged by detailed provisions for maintenance and preservation of records. In order to fully operationalise the restrictions and injunctions contained in the Act in general and in sections 4, 5 and 6 in particular, to regulate the use of pre-natal diagnostic technique, to make the pregnant woman and the person conducting the prenatal diagnostic tests and procedures aware of the legal and other consequences and to prohibit determination of sex, the Rules prescribe the detailed forms in which records have to be maintained. Thus the Rules are made and forms are prescribed in aid of the Act and they are so important for implementation of the Act and for prosecution of the offenders, that any improper maintenance of such record is itself made equivalent to violation of the provisions of sections 5 and 6, by virtue of the proviso to sub-section (3) of section 4 of the Act. It must, however, be noted that the proviso would apply only in cases of ultrasonography conducted on a pregnant woman. And any deficiency or inaccuracy in the prescribed record would amount to contravention of the provisions of sections 5 and 6 unless and until contrary is proved by the person conducting such ultrasonography. The deeming provision is restricted to the cases of ultrasonography on pregnant women and the person conducting ultrasonography is, during the course of trial or other proceeding, entitled to prove that the provisions of sections 5 and 6 were, in fact, not violated.

It needs to be noted that improper maintenance of the record has also consequences other than prosecution for deemed violation of section 5 or 6. Section 20 of the Act provides for cancellation or suspension of registration of Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic in case of breach of the provisions of the Act or the Rules. Therefore, inaccuracy or deficiency in maintaining the prescribed record shall also amount to violation of the prohibition imposed by section 6 against the Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic and expose such clinic to proceedings under section 20 of the Act. Where, by virtue of the deeming provisions of the proviso to sub-section (3) of section 4, contravention of the provisions of section 5 or 6 is legally presumed and actions are proposed to be taken under section 20, the person conducting ultrasonography on a pregnant woman shall also have to be given an opportunity to prove that the provisions of section 5 or 6 were not violated by him in conducting the procedure. Thus the burden shifts on to the person accused of not maintaining the prescribed record, after any inaccuracy or deficiency is established, and he gets the opportunity to prove that the provisions of sections 5 and 6 were not contravened in any respect. Although it is apparently a heavy burden, it is legal, proper and justified inview of the importance of the Rules regarding maintenance of record in the prescribed forms and the likely failure of the Act and its purpose if procedural requirements were flouted. The proviso to sub-section (3) of section 4 is crystal clear about the maintenance of the record in prescribed manner being an independent offence amounting to violation of section 5 or 6 and, therefore, the complaint need not necessarily also allege violation of the provisions of section 5 or 6 of the Act. A rebuttable presumption of violation of the provisions of section 5 or 6 will arise on proof of deficiency or inaccuracy in maintaining the record in the prescribed manner and equivalence with those provisions would arise for punishment as well as for disproving their violation by the accused person. That being the scheme of these provisions, it would be wholly inappropriate to quash the complaint alleging inaccuracy or deficiency in maintenance of the prescribed record only on the ground that violation of section 5 or 6 of the Act was not alleged or made out in the complaint. It would also be improper and premature to expect or allow the person accused of inaccuracy or deficiency in maintenance of the relevant record to show or prove that provisions of section 5 or 6 were not violated by him, before the deficiency or inaccuracy were established in court by the prosecuting agency or before the authority concerned in other proceedings.
Upon above analysis and appreciation of the scheme and provisions of the Act and Rules made there under, opinion on issues referred to the larger bench is as under:

(i) Under the provisions of section 28 of the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (“the PNDT Act”), a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in that behalf by the Appropriate Authority.

(ii) The proviso to sub-section (3) of section 4 of the PNDT Act does not require that the complaint alleging inaccuracy or deficiency in maintaining record in the prescribed manner should also contain allegation of contravention of the provisions of section 5 or 6 of the PNDT Act.

(iii) In a case based upon allegation of deficiency or inaccuracy in maintenance of record in the prescribed manner as required under sub-section (3) of section 4 of the PNDT Act, the burden to prove that there was contravention of the provisions of section 5 or 6 does not lie upon the prosecution.

(iv) Deficiency or inaccuracy in filling Form F prescribed under Rule 9 of the Rules made under the PNDT Act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the PNDT Act and has to be treated and tried accordingly. It does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of section 5 or 6 of the Act and the Court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filling up the forms. For example, not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her.

Further in the case of Dr. (Mrs.) Suhasini Umesh Karanjkar Vs. Kolhapur Municipal Corporation & Ors. (Civil Application No. 512 of 2011) , a Full bench of judges of Bombay High Court also noted that

A bare perusal of the aforesaid statutory provisions, both in the Act and in the Rules framed there under, makes it abundantly clear that an ultrasonography test on a pregnant woman is considered to be an important part of a pre-natal diagnostic test or pre-natal diagnostic procedure, which cannot be conducted except for the purpose of section 4(2). The person conducting ultrasonography on a pregnant woman has to maintain a complete record thereof in the manner prescribed in the Rules and a deficiency or inaccuracy in maintaining such records would amount to an offence, unless the person conducting such sonography is able to show that there was no deficiency or inaccuracy.

The same opinion has been taken in the case of Radiological and Imaging Association (State Chapter- Jalna), through Dr. Jignesh Gokuldas Thakker, its PC-PNDT Coordinator for the Indian Radiological and Imaging Association Vs. Union of India (UOI) Through its Secretary, Ministry of Health and Family Welfare and others (Writ Petition No. 797 of 2011) , in which a Bench of Judges comprising Mohit S. Shah, C.J. and R.P. Sondurbaldota, J. were pleased to order that –

A bare perusal of the aforesaid statutory provisions, both in the Act and in the Rules framed there under, makes it abundantly clear that an ultrasonography test on a pregnant woman is considered to be an important part of a pre-natal diagnostic test or pre-natal diagnostic procedure, which cannot be conducted except for the purpose of Section 4(2). The person conducting ultrasonography on a pregnant woman has to maintain a complete record thereof in the manner prescribed in the Rules and a deficiency or inaccuracy in maintaining such records would amount to an offence, unless the person conducting such sonography is able to show that there was No deficiency or inaccuracy.

In reply to Para 4
It is denied that on 27.4.2005 the complainant apparently had egg to which she was allergic and due to some problem including abdominal pain she was taken to Sir Ganga Ram Hospital that night where she was medically examined (including per vaginal examination) and she was prescribed medicines and she went home. It is denied that she was asked to take syrup Digene and tablet Meftal Spas. The story mentioned in the present Para is a concocted and false story. The true fact is that at no point of time on 27/04/05, the respondent no 2 was taken to Ganga Ram hospital for allergy/pain abdomen. The respondent no 2 was unaware of the false history mentioned in the case sheet, as the history was given by the accused persons i.e. the husband and the mother in law of the respondent no 2 and the same is a part of conspiracy by all the accused persons. The case sheet always remained in the custody of the accused no 1 i.e. Jaipur Golden Hospital.

In reply to the same it is submitted that the true facts are that

On 27 April 2005 a conspiracy was hatched between the accused persons to get the sex determination of the fetuses. The in-laws of the Respondent no 2 were well aware of the fact that the Respondent no 2 was allergic to egg and whenever Respondent no 2 eats egg, she develops acute abdominal pain and vomiting. In order to fulfill their nefarious designs the brother-in-law of the Respondent no 2 (Accused no 6 in the complaint case) brought a cake on 27.4.05 at about 10-11 p.m. in the night, which was laced with the eggs and the respondent was told that the cake is eggless.

The Respondent no 2 was given the said cake to be consumed by her and it resulted in acute abdominal pain with vomiting to the Respondent no 2. The respondent no 2 was not taken to any hospital for the allergic manifestations and she took medicines available to her at home.

It is also denied that the accused husband and in-laws took the Respondent no 2 to Ganga Ram hospital for pain abdomen/complaint of allergy in the night or that the doctors prescribed Tab Meftal Spas/Syrup Digene to the Respondent no 2. The falsehood in the story is apparent from the fact that neither Tab Meftal Spas nor Syrup Digene is an anti-allergic which will be given for allergy.

The fact is that the Respondent no 2 took anti-allergic medicines available to her at home.

In reply to the Para no II , It is denied that on 28.4.2005 the Complainant consulted the gynecologist at the Jaipur Golden Hospital being about 16 weeks diagnosed twin pregnancy with abdomen pain and one vomiting after taking Pranthas in Morning.

The true facts as they happened are as under-

That on 28th April 2005 Respondent no 2 was then taken to casualty of Jaipur Golden Hospital. It is relevant to mention here that Respondent no 2 made several requests of the husband and other in laws, that if at all she has to be taken to any hospital, then she should be taken to Sir Ganga Ram Hospital, as she was undergoing Anti Natal treatment there. However, her requests were brushed aside.

Respondent no 2 was taken to Jaipur Golden Hospital casualty from where she was referred to Labor room.

9:34 a.m. – the Respondent no 2 was admitted to the labor room despite the fact that she was only 16 weeks pregnant. However strangely the treatment chart of the labor room mentions that the respondent no 2 was given injection voveron at 9 a.m. despite the time of admission to labor room itself being 9:34 a.m.

The consent for the admission and treatment was not taken from the Respondent no 2 despite the fact that she was conscious and in a position to give informed consent.

It is also very relevant to mention here that the past history of the Respondent at time of admission mentions the history of Pylonephritis 2-3 years before the pregnancy and recurrent urinary tract infection and also mentions that the same has not happened since conception. However no ultrasound was ordered at this stage.

The perusal of records also show that the heart sounds of both the fetuses were normal at the time of admission and remained so during her stay in Jaipur Golden Hospital, clearly implying that the fetuses remained unaffected by the allergy.

During her admission to Jaipur Golden Hospital, Respondent no 2 was given some treatment (medicines as well as injections).

10:00 a.m. – The doctor’s notes reveal that the Respondent no 2 was already feeling better by then. The fetal heart sounds noted at this time were also normal. Strangely the treatment chart mentions all the treatment (except injection voveron which is shown as given at 9 a.m) being given at this time.

12:30 noon – The treating gynecologist Dr S.K. Basu was re-informed about the past history of Pylonephritis (acute infection of the kidneys) with recurrent U.T.I. The bare perusal of the records show that the gynecologist ordered KUB ultrasound only at around 12:30 p.m. after taking note of past history of Pylonephritis, by when the Respondent no. 2 was already feeling better.

The petitioner has knowingly not attached the entire case sheet of the Annexure P-1, in order to mislead this Hon`ble court. The complete admission case records are annexed with this petition and are marked as ANNEXURE D-1.

From the above mentioned sequence of events , it clearly shows that the case file has been tampered/modified or been created as a part of conspiracy by the accused persons. This is clear from the following facts-

The respondent no 2 was never taken to Ganga Ram Hospital on 27/04/05 for any complaint of pain abdomen/allergy.
No doctor will only prescribe Tab meftal spas/ Digene for a case of allergy. A dose of anti-allergic has to be given immediately to any patient presenting with history of allergy.
The case sheet mentions that the pain abdomen/vomiting started in evening, while the fact is that the egg laden cake was given to the Respondent no 2 only between 10-11 p.m. on 27/04/2005. It was only after taking the cake , respondent no 2 started having pain abdomen and vomiting.
The treatment chart of the LABOUR ROOM , mentions that injection voveron was given to the Respondent at 9 a.m, while the time of admission was itself 9 : 34 a.m.
Surprisingly the entire case sheet of the respondent no 2 of her admission to Jaipur Golden Hospital, also do not mention any anti-allergic being given to her.
The doctor notes show that the Respondent no 2 was already better by 10 a.m. However surprisingly all the medicines have been given to the respondent no 2 .
Surprisingly though the history sheet of Jaipur Golden Hospital show that the information regarding history of Pylonephritis was given at the time of admission itself, no ultrasound was recommended at that time. The ultrasound was ordered at 12: 30 p.m. after the Respondent no 2 was already feeling better.

A bare perusal of the Ultrasound report of the respondent no 2 done at Jaipur Golden Hospital on 28/04/2005 which the respondent no 2 somehow came in possession of only in March 2008 clearly shows that:

The accused no 3, i.e. Dr Nitin Seth conducted fetal ultrasound instead of Kidney Ureter Bladder (KUB) ultrasound, which was recommended by the gynecologist. (Referral report of Gynecologist attached with the reply and marked as Annexure D-1).
The said fetal ultrasound was done even though it was neither required nor recommended by the gynecologist
The said ultrasound was done without the consent and the knowledge of the Deponent.
Even though it is imperative under Rule 10(1)A of the PC-PNDT Act, that declaration be given by the person conducting ultrasonography/image scanning on a pregnant woman on every report of ultrasonography/image scanning that he/she has neither detected nor disclosed the sex of fetus of the pregnant woman to anybody, it was not made.
Evidently, no form F was filled up, which is mandatory under the Act.

It is wrong and denied that since the cause of pain could not be ascertained medically in view of the medical examination a night before at Sir Ganga Ram Hospital and in View of the administration of medicines and the persistence of the pain and vomiting the gynecologist at Jaipur Golden Hospital ordered for her ultrasonography of the abdomen including Kidney Ureter Bladder (KUB) and a doctor working in the centre of the Petitioner namely Dr. Niten Seth conducted the ultrasound examination.

However it is highlighted that the petitioner is accepting that Dr Niten Seth the radiologist who did the ultrasound was working in the center of the petitioner and was hence an employee of the petitioner.

In reply to above it is stated that no such event of visit to Ganga Ram Hospital for pain abdomen/allergy took place on 27^th or 28^th April 2005 or Tab Meftal Spas/Syrup Digene was prescribed. The lie is apparent from the fact that neither Tab Meftal Spas / Syrup Digene is an anti-allergic which will be given as first line of treatment to any patient presenting with history of allergy.

Further the Respondent no 2 was given no anti-allergic medications even during her admission to Jaipur Golden Hospital as per the clinical records and hence explains the continuation of the symptoms which arose because of allergic reaction.

It is also denied that as per the instructions of the gynecologist an ultrasound of the whole abdomen with KUB was conducted. In reply to the same it is mentioned that the report does not mention important ingredients of a KUB examination like size of kidneys, volume of Bladder etc. The report also does not mention any details about other organs included in whole abdomen ultrasound which are important e.g. Liver, spleen, gall bladder, pancreas etc. A copy of template for reporting ultrasound whole abdomen is annexed along with and marked as Annexure D-14.

The report prepared by the employee of the petitioner only mentions the detailed fetal ultrasound which was never asked for by the Gynecologist.

Further the report also does not mention the mandatory declaration to be given on every report of ultrasound under rule 10(1) A

“Rule 10 (1)A. Any person conducting ultrasonography/image scanning on a pregnant woman shall give a declaration on each report on ultrasonography/image scanning that he/she has neither detected nor disclosed the sex of fetus of the pregnant woman to anybody. The pregnant woman shall before undergoing ultrasonography/ image scanning declare that she does not want to know the sex of her fetus”

It is further denied that since the pregnant uterus was present in the same area and any problem in it could have been responsible for the abdominal pain the uterine and fetal ultrasound was also done by the radiologist, so as to not miss any diagnosable cause for the pain.

In reply to the same it is stated that the radiologist is supposed to do the ultrasound which he/she has been referred for. It was the sole prerogative of the gynecologist treating the Respondent no 2 to decide whether a fetal ultrasound was needed or not. Infact the petitioner is herein accepting that the radiologist did the fetal ultrasound on his own , without there being a referral fro the same by treating gynecologist.

It is further denied that the Fetal ultrasound of the twin fetuses was also conducted to look for their viability and clinical status which could have been compromised as a result of the abdominal pain or may even have been a cause for the abdominal pain in case there was some complication in the fetus. In reply to the same it is mentioned that The fetal heart sounds have been checked and found normal during the admission to labor room and at 10 a.m on 28 April 2004, hence there was no question as to the viability or that the fetuses were affected by the allergy in any way. It is again reiterated at the cost of repetition and that it was the prerogative and discretion of the treating physician/gynecologist as to which ultrasound she needs for the patient and the radiologist is not only supposed to adhere to the same, but also maintain the referral slip with every ante natal ultrasound.

It is specifically denied that since no cause was found in the Kidneys and urinary bladder [KUB) or elsewhere in the abdomen a uterine and fetal examination was necessary. In reply to the same it is re-enforced and restated that it is the sole prerogative of the treating gynecologist as to which ultrasound is needed/required and the radiologist has only to do the ultrasound which the treating gynecologist has asked for. It is further submitted that the referral for the antenatal ultrasound is very important during pregnancy that the radiologist is supposed to properly maintain the referral forms for each ante natal ultrasound and the same even finds a mention in the Form F, point 7 as “Referred by (full name and address of Doctor(s)/ Genetic Counselling Centre (Referral note to be preserved carefully with case papers)”.

Therefore from above it clear and evident from the petition of the petitioner that the that a conspiracy was hatched between all the accused persons and without the consent and knowledge of the Respondent no 2, a fetal ultrasound was done.

In reply to Para no III, it is stated that from the facts stated in by the Respondent no 2 in the reply to Para no II of the petition,which clearly shows the conduct of the employee of the petitioner Dr Niten Seth, who conducted the un-recommended / without referral ultrasound of the fetuses and without the consent and knowledge of the respondent, itself shows that the radiologist has specifically investigated and determined the sex of the fetuses of the respondent no 2 , at the time when the respondent no 2 was carrying 16 weeks twin pregnancy and at that stage of pregnancy a radiologist can easily and exactly determine the sex of the fetus.

It is submitted that it is not mandatory at the time of doing ultrasonography patient should be conscious during the examination as ultrasound examination is routinely done in unconscious as well as sedated patients. In fact sometimes sedation is given before doing an ultrasound examination.

In the reply to the same it is submitted that at the time of the ultrasound examination respondent no 2 was asleep, as she had spent the entire night in pain and taken anti allergics available at home. Respondent no 2 felt better only around 10 a.m. and hence naturally fell asleep. Even at the time of the ultrasound she was sleepy and sedated and hence was unaware about the nature of ultrasound examination done by Dr Niten Seth/Accused no 3.

It is submitted that above events and circumstances clearly shows that un-recommended / un-reffered fetal ultrasound was done at the radiological center of the petitioner without the consent and knowledge of the respondent no 2 and sex determination was done at the ultrasound center of the petitioner. Therefore as per sec 26 of the PC-PNDT Act the petitioner is equally liable to be prosecuted.

The contents of Para IV are denied in totality. It is denied that in the police complaint dated 06.07.2005 Respondent no 2 had alleged that her in-laws were demanding a sex determination test implying clearly that by that date, according to the complainant, she did not suspect any sex determination test had been done upon her.

The contents of para are based on deliberate and intentional misquoting and misreading of the complaint dated 06/07/2005, in order to misguide the Hon’ble court and also to hide his misdeeds. A bare perusal of the complaint dated 06/07/2005 will in itself show that the complaint states the events in a chronological sequence starting from marriage à conceptionà pressures for sex determinationà pressures to abort à attempt to abort and threat to life à Respondent no 2 shifts to parental home to save her life and pregnancy. The said complaint is Annexed along with as Annexure D-2

It is accepted that on 12.07.2005 another whole abdomen ultrasound of the abdomen of the respondent no 2 was done in Ganga Ram Hospital when she was there for her ante-natal check up. However no fetal ultrasound was done on that day.
It is a matter of fact that despite all effort to kill the daughters, on 11.8.2005 the complainant delivered twin baby girls.

The contents of the Para VII of the petition are denied. It is denied that point of time, the complainant had not made any complaint with any authority in regard to the said alleged sex determination test.

It is submitted that in Feb-March 2006 , the Respondent no 2 came to know when her husband in a drunken state told her that a sex determination test had been conducted on her at the insistence of her husband and in-laws. The respondent no 2 immediately made the complaint on 12.03.06 to the Janakpuri police station about the fact.

However at that time she was unaware as to the place where it was conducted and when the same was conducted. It is further stated that the Respondent no 2 was not in possession of any papers/documents in relation to her admission at Jaipur Golden Hospital.

In reply to the Para no VIII of the petition ,it is submitted that the respondent no 2 specifically stated in her complainant dated 12.03.2006 made to the SHO, Janakpuri Police Station that :

“I had repeated ultrasounds during pregnancy and from somewhere my in-laws came to know I am carrying female babies“.

The complaint dated 12 March 06 is Annexed along with as Annexure D-3

It is further stated that in the month of Mar 2008, when the respondent no 2 came across the documents related to the ultrasound at the center of the petitioner, she immediately filed the complaint to various authorities on 10^th April 2008.

it is further stated that in July 08, when the respondent no 2 came to know that the form f was not filled , when the ultrasound was done on her at the center of the petitioner and thereafter when no action was taken by the authorities against the present powerful petitioner and another accused persons, than the respondent no 2 , filed a complaint in Nov 2008 before the trial court on which the trial court has taken cognizance.

In reply to the Para no IX of the petition , it is submitted that the respondent no 2 again disclosed the entire facts and again specifically disclosed in her complaint dated 09.06.2006 to the Deputy Commissioner of Police, Women Cell, New Delhi and clearly outlines the chronological sequence of events happened with her which is as under:

“Then they came to know that I am carrying twin babies. My mother in law started demanding sex determination of the babies. I have a strong suspicion that they got to know about the sex of the babies, because mother in law started demanding that I get one of the babies killed in uterus. My husband asked for D.N.A. testing of the babies saying that it is written in the horoscope that he would have only sons. He also asked me to get an M.T.P. (Medical Termination Of pregnancy) done or take a divorce”.

Further it is submitted that after complaint dated 09.06.06 , the respondent no 2 further made a complaint on 02.01.08 to Mrs Reny Jacob, Member Delhi commission of women clearly stating that :

“Then we came to know that I am carrying twin babies. Then my mother in law started demanding sex determination. They got that done by force. Then they started demanding that I get an M.T.P. My mother in law asked me many times to at least get one child killed in uterus. I was kept without food and water. My husband was totally ignoring me and was indulging in watching Pornography all the time. When I developed bleeding and threatened abortion, I was not even allowed to call up my parents for medical help. My mother in law told me that daughters would be a big burden on them, and that I should give one of them up for adoption. Or get them aborted, or at least one of them killed“.

Complaint dated 02.01.08 to Mrs Reny Jacob, Member DCW is Annexed as Annexure D-5.

Contents of Para X are denied and in reply to the Para no X, It is submitted that on 10.04.2008 the complainant made complaint to the National Commission for Women, New Delhi mainly alleging torture upon her by her husband and in-laws.

This is the first time, the Respondent no 2 has mentioned about the fraudulent fetal ultrasound done upon her by the employee of the present petitioner, as it was only in March 2008 that she came across the report of ultrasound done at Jaipur Golden Hospital on 28 April 05, and thus became aware that a FETAL ULTRASOUND WAS DONE ON HER DECIETFULLY DURING HER ADMISSION TO JAIPUR GOLDEN HOSPITAL FOR EPISODE OF ALLERGY.

It is further submitted that there is no delay in reporting of the events by the Respondent no 2 as she immediately reported the matter as soon as it came to her notice that fetal ultrasound was done on her during her admission at Jaipur Golden Hospital. In fact this was the reason why the name of the petitioner, Jaipur Golden Hospital and Dr Niten Seth has never come up in any complaint before any authority before March 2008 , as till March 2008 she herself was unaware that the fetal ultrasound was done during her admission at Jaipur Golden Hospital.

It is denied that Respondent no 2 has hidden anything in the complaint, as she was never taken to Ganga Ram Hospital for pain abdomen/ allergy on the night on which she was given eggs. There was no question of being medically examined for the same. The same is a concocted story stated in the inpatient records which is part of the conspiracy between the accused. The same story was not in the knowledge of the respondent no 2, as the inpatient records were in the custody of the accused.

It is denied that only when the abdominal pain persisted in the morning and she also vomited after having paranthas that she was taken to Jaipur Golden Hospital where the gynecologist who examined her felt it necessary to get her ultrasound done. In reply to the same it is pointed out that the Gynecologist did not order the ultrasound examination along with other tests, at the first instance when the treating Gynecologist first examined the Respondent no 2. The ultrasound examination was ordered only when the husband /mother in law again brought to the notice of the gynecologist at 12:30 p.m. that the Respondent no 2 had an episode of Acute Pylonephrititis. It is worthy to mention here that a perusal of complete case records (which petitioner has knowingly not attached in full with his petition) will show that the Respondent no 2 was already feeling better by then (reference doctor noting at 10 a.m.). Hence it is also denied that ultrasound was ordered to ascertain the cause of the pain, as by then the respondent no 2 was better.

The fetal parameters including fetal heart sounds were normal, hence there was also no question regarding the viability of the twin fetuses, and the gynecologist in all her wisdom did not ask for a fetal ultrasound.

It is denied that Respondent no 2`s intention was to initially implicate her in-laws and her husband only, as the said complaint dated 10/04/08 clearly states that she is willing to share the copies of ultrasound reports and documents with any authorities who would care to investigate the matter.

It was mentioned for the first time about the incidence of having fed her egg laden cake by deception saying that it was eggless after more than three years, because the Respondent no 2 came to know about the conspiracy to get her fetal ultrasound done, only after when respondent no.2 saw the reports of ultrasound dated 28-04-2005 done at the petitioner centre in March 2008. She had accepted her husband’s statement that perhaps the cake contained egg by mistake as true. It was only when she came to know that it was during this admission that she was deceived into undergoing a fetal ultrasound under the guise a KUB ultrasound for a totally unrelated medical complaint of allergy by the accused persons that she put two and two together and understood the conspiracy having been done on her.

In reply to Para no XI, it is submitted that the complaint dated 09.05.08 to the Appropriate Authority regarding sex determination being done on her. In fact she has very explicitly stated the deception in her complaint as

“My in laws and husband were pressurizing me and torturing me to get a sex determination, and abortion if both fetuses were females. My brother in law Mr Deepesh Madan, came to my in laws house on 27^th April, 2005, with a cake saying it was egg less (as it was a common knowledge that l was allergic to egg). I started having pain abdomen, with nausea, vomiting, and loose motions, late in the night, I wanted to have treatment with consent of my husband at home, (as it was a simple case of allergy, which could be managed at home). On 28^th April 2005 he took me Jaipur Golden hospital, as it was near their home. He and his mother accompanied me. They got me admitted there, and then gave a call to my mother asking her to come. The doctor advised K.U.B (Kidney, ureter, bladder).ultrasound and various other tests. I was discharged the same day with conservative management.”

The copy of the ultrasound done at Jaipur Golden Hospital was enclosed along with and also finds mention in the list of enclosures.

It is denied that the said complaint cannot be basis for filling of complaint in the court of Metropolitan Magistrate as notice of 15 days was not given. In reply to the same it is stated that the Respondent no 2 had made a complaint to the Appropriate Authority trusting them to do a fair investigation and then take appropriate action under the Act.

As the petitioner has himself admitted in the present petition, his influential and powerful status and therefore, the three member committee which was constituted by the Appropriate Authority did not issue any notice to the present petitioner for any enquiry/investigation. No notice was issued to the petitioner to join any investigation/enquiry even despite that form F of that relevant period were sent by the present petitioner on his letterhead, which has admitted by the present Petition in para 4 (XIV) at page no 14 of the petition.

The enquiry conducted by the three member committee appointed by the Appropriate Authority was only eyewash as all the proceedings were done to protect the present powerful petitioner. Further during the enquiry before the Appropriate Authority, number of times the respondent no 2 was pressurized to withdraw the complaints made by her.

The committee asked straightforward questions from all accused asking them if they conducted the sex determination test, and on basis of answers given they came to the conclusion that there is no sex determination test. A copy of statements of the doctor, mother in law and father in law of the Respondent no 2 collected before the committee is enclosed as Annexure- D-15.
The present petitioner and Jaipur Golden Hospital were not summoned for any enquiry despite the fact that form F of the period were submitted on the letter head of the present petitioner and the form F of the Respondent no 2 was not there in the 103 form F`s submitted.
The Respondent no 2 filed various objections to the way enquiry committee had committed the enquiry vide letters dated 06/11/2008, 06/04/2009, 25/04/2009 and 28/05/2009. The said objections of the Respondent no 2 went unheeded and the enquiry committee report which was an effort by the authorities to save the influential accused was never reviewed.

It is submitted that the enquiry committee despite finding that Form-F in respect of the complainant was not available and this in itself amounts to contravention of section 5 and section 6 of the P.C-P.N.D.T Act, the committee directed that a case be registered only against the Director, Jaipur Golden Hospital, despite the fact that the records of the relevant period were sent by the Petitioner on his own letter head.

Even no case was registered even against the doctor who conducted the ultrasound, without the consent and the knowledge of the Respondent no 2 and without filling form F, only on the basis of a statement given by the concerned radiologist (Annexure D-16).

Therefore when the Respondent no 2 noticed that the Appropriate Authority was doing everything in their powers to protect the powerful perpetuators of crime including intimidating her. It was then that Respondent no 2 gave Appropriate Authorities a notice of 15 days about her intention to move courts on her complaint. The said notice was sent to the authority on 18^th October 2008 and thereafter the Respondent no 2 moved the court on 21 November 2008. The notice to the Appropriate Authority is annexed as Annexure D-8. The file noting of the Appropriate Authority regarding receiving the notice of 15 days is annexed as Annexure D- 17.

It is further denied that in the said complaint the Complainant departed from the averments made in her complaint dated 10^th April, 2008 by alleging that the eggless cake was fed to her by her brother-in-law namely Mr Deepesh Madan or that just one month earlier when she had made a complaint to the National Commission of Women, she had mentioned that she was fed with eggless cake by her in-laws and by her husband. Mr Deepesh Madan is the husband of the sister of husband of the Respondent no 2 (Nandoi) and hence included in the term “inlaws and Husband” mentioned in complaint to the National Commission of Women on 10^th April 2008.

In reply to the Para no XII, it is restated that the Respondent no 2 had sent an notice on 18^th October 2008, to the Appropriate Authority regarding her intention to move court on her complaint within 15 days. A copy of the said Notice is annexed as Annexure D-12. A file notification of the Appropriate authority regarding having received the notice is Annexed as Annexure D-18 . Further it is denied that in the complaint before the Metropolitan Magistrate, bald allegations have been made against the accused nos. l to 3 of having conspired to conduct the sex determination test on the complainant.
1. ADMITTEDLY As per the petitioner himself the Petitioner was a partner in the partnership firm Mahajan Diagnostics which was managing the radiological centre at the Jaipur Golden Hospital under the name of Mahajan Imaging Centre. (Page 4 of the petition under answer) and as per section 23 of the PC-PNDT Act
2. Offences and Penalties (1) Any medical geneticist, gynecologist, registered medical practitioner or any person who owns a Genetic Counseling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.

ADMITTEDLY The radiologist who did the ultrasound was working in the center of the petitioner and was an employee of the petitioner. (Page C of the petition under Answer). Therefore the petitioner is liable to be prosecuted as per the section 26 of PC-PNDNT Act.

“26. Offences by companies.- (1) Where any offence, punishable under this Act has been committed by a company, every person who, at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence punishable under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purposes of this section,—

(a) “company” means anybody corporate and includes a firm or other association of individuals, and

(b) ”director”, in relation to a firm, means a partner in the firm

ADMITTEDLY The Form F of ultrasounds done during the period of April 2005 was submitted by the petitioner to the Appropriate Authority on his letter head (under rule 9 (4) and 9(8) of the P.C-P.N.D.T rules). Therefore the petitioner is also liable to be prosecuted for not maintaining / filling the Form F of the Respondent no 2 to the appropriate authority in the month of May 2005, along with other 103 form F.

This was a clear attempt to hide the fact from the authorities that a fetal ultrasound was done on the Respondent no 2 without any recommendation/ referral during her admission to the Jaipur Golden Hospital.

As per the full bench Judgement of the Gujarat High court not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated. ( High court of Gujarat in Suo Moto vs state of Gujarat and Others. (Cri. Reference Nos. 4 and 3 of 2008 (2009 CRI. L. J. 721, (2009)1 GLR 64, MANU/GJ/0717/2008)

In reply to Para no XIII , it is submitted that it has been admitted by the present petitioner
1. in Para no 3 of the petition à “ At the relevant time the petitioner being part of a partnership firm was managing the radiological center at the Jaipur Golden Hospital”
2. At line no 5 from top of Page 6 of the petition, the present petitioner admitted à “A doctor working in the center of the petitioner namely Dr Niten Seth conducted the ultrasound examination”. The said doctor was also issued show cause notice under section 5 & 6 of the P.C-P.N.D.T Act. The notice issued to the “doctor working in the center of the petitioner” is Annexed alongwith as Annexure D-18.
3. In Para XIV on page 14 of the petition à “accordingly the petitioner on his initiative started sending the reports under Rule 9(8) of the PC-PNDT rules”

Therefore the petitioner is liable to be prosecuted under section 26 of the P.C-P.N.D.T Act as he admits being the active partner and managing the radiological center being run in Jaipur Golden Hospital at the relevant time. He also admits the Dr Niten Seth was in employee and at the relevant time he was sending the monthly form F of the appropriate authorities.

In reply to Para XIV ,it is stated that in the petitioner has admitted that he was the active PARTNER IN FIRM MAHAJAN DIAGNOSTICS at the relevant time.

Further the petitioner has accepted and stated in the present petition that “JAIPUR GOLDEN HOSPITAL WAS NOT COMPLYING WITH THE PC-PNDT ACT, which in itself shows that sex determination was done on the respondent no 2 , during her admission to the Jaipur Golden Hospital.

Despite the knowledge about the same, the petitioner did not file any complaint with any authority about the fact that the partner company was not following the law
The petitioner continued the partnership with the offending hospital for a period of more than 6 years purely for his own monetary benefit, despite knowing that it was not following the PC-PNDT Act.

The petitioner has accepted in the present para that “the petitioner on its own initiative started sending the reports under rule 9(8) of the PC-PNDT rules.”

The petitioner has further admitted in the present Para that “In the month of April 2005, the reports has been submitted to the appropriate authority on his letterhead”

It is clear from the above admissions that Form F in the case of the respondent was not filled by the petitioner in conspiracy with the other accused persons , as the monthly report for the month of April 2005 of Form F of other 103 women did not have the name of the Respondent no 2.

The contents of the Para XV are denied. It is denied that the complainant in her intimation to the appropriate authority on 09.05.2008 did not allege any offence committed either by the Petitioner or even by the doctor conducting the test or by the Jaipur Golden Hospital and hence the Magistrate has no jurisdiction to take cognizance on the complaint dated 22.11.2008 in view of the statutory bar under Section 28 of the PC-PNDT Act.

In reply to the same it is submitted that the Respondent no 2 had sent a notice on 18th October 2008, to the Appropriate Authority regarding her intention to move court on her complaint within 15 days. A copy of the said legal Notice is annexed as Annexure D-11. A file notification of the appropriate authority regarding having received the notice is annexed as Annexure D- 17. It is further submitted that the offence committed within the jurisdiction of the trial court and the trial court has Jurisdiction to take cognizance as per law and the same has been taken by the trial court under the provisions of the PC-PNDT Act.

In reply to Para no XVI , it is submitted that it is an admitted case of petitioner that at the relevant time the petitioner was an Active partner of the Mahnajan Imaging center. The petitioner has further admitted in this petition that Dr Niten Seth /Accused no 3 of the complaint of Respondent no 2 was an employee of the petitioner. It has also been admitted by the petitioner that at the relevant time i.e. for the month of April 05, the report of Form F was sent by the petitioner to the Appropriate Authorities.

Therefore there is sufficient material available against the petitioner to under the provisions of the section 23 and 26 of the PC-PNDT Act.

The submissions in points XVII and XVIII are accepted as a matter of records and require no reply.
That on 28.05.2013, the trial court has taken the cognizance against the present petitioner as there was /is sufficient material available with the trial court to take cognizance against the present petitioner.

The submissions in points XX are accepted as a matter of records and require no reply.

Para no 5 is matter of records and need no reply.
Para no 6 is matter of records and need no reply.
Para no 7 is matter of records and need no reply.

REPLY TO GROUNDS

A. The contents of ground A are denied. It is submitted that the required notice of 15 days under section 28 of the PC-PNDT Act was given to the Appropriate Authority, and the same is annexed as Annexure D-8. It is denied that the respondent no 2 has not made any reference to the ultrasound done at the center of the respondent as the complaint clearly mentions that

“My in laws and husband were pressurizing me and torturing me to get a sex determination, and abortion if both fetuses were females. My brother in Law Mr Deepesh Madan, came to my in laws house on 27^th April, 2005, with a cake saying it was egg less (as it was a common knowledge that l was allergic to egg). I started having pain abdomen, with nausea, vomiting, and loose motions, late in the night, I wanted to have treatment with consent of my husband at home (as it was a simple case of allergy, which could be managed at home). On 28^th April 2005 he took me Jaipur Golden hospital, as it was near their home. He and his mother accompanied me. They got me admitted there, and then gave a call to my mother asking her to come. The doctor advised K.U.B (Kidney, ureter, bladder) ultrasound and various other tests. I was discharged the same day with conservative management.”

B. The ground stated in Para B are denied. In reply to the same it is re-submitted that as admittedly it was the petitioner who sent the 103 other form F of the same period, from the same machine to the Appropriate Authority, but in collusion with other accused persons the petitioner has not sent the Form F of the respondent no 2, in order to conceal the said ultrasound from the Appropriate authorities, as sex determination test was conducted upon the respondent no 2 by all the accused persons. The Affidavit of the Appropriate Authority in this regard is Annexed as Annexure D-18

C.In reply to the Para no C of the Grounds, it is submitted that the Respondent no 2 was unaware that a fetal ultrasound had been done upon her during her admission to the Jaipur Golden Hospital.

It was only in Mar 2008, when she saw the report of the ultrasound that she became aware that she had been deceived into a fetal ultrasound during her admission to Jaipur Golden Hospital. The same fact is clearly mentioned in the complaint to the Appropriate Authority dated 09.05.08.

It is further submitted that sex determination was done during her admission was further revealed when it was revealed to her that form F was not filled when ultrasound was done upon her in Jaipur Golden Hospital.

It is denied that respondent no 2 had not sent a 15 days’ notice to the Appropriate Authority about her intention to move the courts, as the said notice was duly sent on 18 October 2008. (Annexure-D-11 and Annexure D-17).

D.The contents of Ground D are false and denied. It is denied that the complaint is an afterthought. It is submitted that the Respondent no 2 had informed the authorities time to time , as and when Respondent no 2 came to know about the conspiracy hatched between the accused persons.

It is further submitted that on one side the petitioner has claimed no personal relationship with the accused Dr Kamal Khurana and on other side he is protecting Dr Kamal Khurana, as if he has knowledge about personal life of the Respondent no 2 with her in-laws.

E. In reply to Ground E it is stated that the respondent had deposed before the trial court at the time of recording her statement under sec 200 of CrPC has stated that

“that the gynecologist took note of my past history of kidney infection (2 to 3 years before pregnancy) and she ordered a ultrasound scan of my whole abdomen with kidneys, ureter and bladder. Then I was taken to the ultrasound room where the accused no 3 i.e. the radiologist instead of doing ultra sound whole abdomen with kidney ureter bladder, also did a fetal ultra sound which had never been ordered by the gynecologist. The fetal ultra sound was done without my consent and knowledge”

The petitioner himself has admitted in the present petition that form F of the respondent no 2 has not been filled by the employee of the petitioner namely Dr Niten Seth (Accused no 3). The petitioner is liable to be prosecuted under section 26 of the PC-PNDT act, as admittedly he was a partner of the firm and the radiologist who did the sex determination was working in the center of the radiologist.

Moreover the petitioner has ADMITTED that it was the petitioner who sent the form F of 103 women to the Appropriate Authority for April 2005, however he did not send the form F of the Respondent no 2 with those 103 forms F, despite the fact that fetal ultrasound was done on the Respondent during that period. (Annexure D-12 and Annexure D-18)

F. In reply to Ground F, it is submitted that the Petitioner is only trying to mislead the Hon`ble court by taking this ground, as the form F of the Respondent no 2 was not submitted to the Appropriate Authorities barely a week after the ultrasound was conducted on Respondent no 2. When the form F was not submitted to the appropriate authority barely a week after the ultrasound, there is no question of its existence/maintenance. The entire record of April 2005 is available with the Appropriate Authorities and in the entire record the form F of the respondent no 2 is not available.

The names of the 103 women whose form F was submitted by the petitioner on 3rd May 2008 is annexed as Annexure D-15. The Affidavit of the Appropriate Authority to this effect is annexed as Annexure D-18.

G. In reply contents of Para G , it is stated that the petitioner has himself admitted

in Para no 3 of the petition à “ At the relevant time the petitioner being part of a partnership firm was managing the radiological center at the Jaipur Golden Hospital”
At line no 5 from top of Page 6 of the petition, the present petitioner admitted à “A doctor working in the center of the petitioner namely Dr Niten Seth conducted the ultrasound examination” .
In Para XIV on page 14 of the petition à “accordingly the petitioner on his initiative started sending the reports under Rule 9(8) of the PC-PNDT rules”

Therefore the petitioner is liable to be prosecuted under section 26 of the P.C-P.N.D.T Act as he admits being a partner and managing the radiological center being run in Jaipur Golden Hospital at the relevant time.

H. In reply to the para H of the grounds It is stated that as on date there is no summoning order dated 08/06/2011 and the summoning orders dated 28.05.2013 has not been passed by the Chief metropolitan magisteate , the summoning order dated 28.05.2013 has been passed by the Shri Dharminder Singh Learned Metropolitan Magistrate , Rohini , Delhi .

I.\In reply to para I of the grounds it is submitted that the trial court has passed the summoning order after applying the judicial mind and based on material available with the court

J. In reply to para J of the grounds it is stated that the Section 469 of Cr. P.C. clearly lays down the legal provisions regarding commencement of the period of limitations.

(1) The period of limitation, in relation to an offence, shall commence, –

(a) On the date of the offence; or

(b) Where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

(c) Where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.

The period for calculating the period of limitation has been clearly stated by the Hon`ble Judge in the case of “Subroto Kumar Dey v. The State of Punjab – CRM-68254-M-2005 [2007] RD-P&H 292” wherein the judges have ordered that –

It would be thus clear that the period of limitation in relations to an offence would commence from different dates depending upon three situations, as noticed in Section 469 (a) (b) and (c). Thus, the period of limitation would commence from the date of offence or from some different dates depending upon the knowledge about the offence or the identity of the offender. The period of limitation accordingly would commence from the date of offence if the identity of the offender as well as the offences is known. The FIR, which was registered on 8.4.2003 in this case, would clearly show that the identity of the offender was not known and it was against a driver of a Uno Car, whose registration number was noted in the FIR. Accordingly, for the purpose of limitation, the provisions of Section 469 ( c ) Cr.P.C. would come into play. A reading of this sub-clause of Section 469 would clearly show that the limitation in this case would commence from the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.

The same opinion was taken by the Hon`ble Judge in the case of State Of Maharashtra vs P.D. Pujari on 30 January ((1980) 82 BOMLR 6, 1979 CriLJ 1152)

Now, ex cathedra or it cannot be gain said, that a prosecution cannot be launched in a vacuum nor can it be against a nonentity or in absentia. The basic wheels to set a prosecution in motion are (i) an offence committed, (ii) knowledge of its commission, and (iii) identity of the offender. If an offence is not committed or, though committed, not know to have been committed, for what crime can a prosecution be instituted ? Or, though commission of an offence has became known, if the offender is not known, against whom can a prosecution be initiated? There cannot be a prosecution for an offence committed but not known nor can there be a prosecution against an offender incognito. Mere knowledge simpliciter of crime is also not by itself enough. Such knowledge can only set into motion the wheels of investigation. For a prosecution the alleged perpetrator of the crime must also be known. There has thus to be not an abstract scenario but a concrete setting in which alone a prosecution can be launched. Though a prosecution should be launched as promptly as possible, it is equally if not more, important that it should also be as precise as possible. All in all, therefore, a prosecution cannot be actually instituted unless the following sine qua non stand fulfilled viz.—

(a) an offence has been committed;

(b) its commission has become known; and

(c) its offender is identified.

Therefore in accordance with Sec 469 (c) of Cr.P.C period of limitation starts from 6th July 2008, when it became clear from the reply from Appropriate Authorities (i.e. C.D.M.O North-west) received by the deponent that the sex determination was done at the center of the petitioner , by an employee of the petitioner , at Jaipur Golden Hospital.

K. In reply to the ground K it is replied that It was mentioned for the first time about the incidence of having fed her egg laden cake by deception saying that it was eggless after more than three years, because the Respondent no 2 came to know about the conspiracy to get her fetal ultrasound done, only after when respondent no.2 saw the reports of ultrasound dated 28-04-2005 done at the petitioner centre in March 2008. She had accepted her husband’s statement that perhaps the cake contained egg by mistake. It was only when she came to know that it was during this admission that she was deceived into undergoing a fetal ultrasound for a totally unrelated medical complaint that she put two and two together and understood the conspiracy having been done on her, to deceive her into a fetal ultrasound.

L. In reply to Para L of it is stated , Mr Deepesh Madan is the husband of the sister of husband of the Respondent no 2 (Nandoi) and hence included in the term “inlaws and Husband” mentioned in complaint to the National Commission of Women on 10^th April 2008.

M. In reply to Para M , it is submitted that, there is no allegation that the petitioner`s center was functioning without a registration. Further in reply to the same it is restated that the petitioner is liable to be prosecuted under section 26 of the P.C-P.N.D.T Act as he himself admits being a partner and actively managing the radiological center being run in Jaipur Golden Hospital at the relevant time and petitioner was sending all the monthly reports required under the Act on his own letterhead.

N. In reply to Para N it is stated that the petitioner has admitted in the para 4 (XIV) that “In the month of April 2005, the reports has been submitted to the appropriate authority on the letter of the Mahajan Imaging center” It is clear from the above admissions that Form F in the case of the respondent was not filled by the petitioner in conspiracy with the other accused persons , as the monthly report for the month of April 2005 of Form F of other 103 women did not have the name of the Respondent no2. As per section 26 of the Act, the petitioner is liable to be prosecuted for offence committed under the PC-PNDT Act.

O. In reply to Para O of the grounds , it is submitted that the petitioner be prosecuted on the complaint pending before the trial court and be punished for the offence committed by him .

It is empathetically yet humbly pointed out to Honble High Court that <ol> <li>ADMITTEDLY the petitioner was a active partner of the radiological center at the time the ultrasound was done on the respondent no 2.</li> <li>ADMITTEDLY the doctor who did the ultrasound was an employee of the petitioner.</li> <li>ADMITTEDLY the provisions of the PC-PNDT Act were not being followed in the Jaipur Golden Hospital at the time the Respondent no 2 was admitted there. (Admission of the present petitioner in Para 4 , XIV and report of raid dated 03.06.08 (Annexure D-17)</li> <li>ADMITTEDLY the petitioner was aware of the fact that provisions of the PC-PNDT Act were not being followed in the Jaipur Golden Hospital and yet the petitioner did not file any complaint with any authority regarding the same and instead only for monetary reasons continued his partnership with the hospital.</li> <li>ADMITTEDLY the monthly report of April 2008 (i.e. the month when the ultrasound was done on the respondent no 2) was sent by the Petitioner on his letter head .</li> <li>ADMITTEDLY the form F of the Respondent not neither filled up, nor sent to District Appropriate Authority by the petitioner, while the form Fs of 103 other women who had undergone ante natal ultrasounds in Jaipur Golden Hospital in April 2005 were sent to the District Appropriate Authority in May 2005. Hence the plea of the same having been weeded out is sham and bogus because the form F of the same month of other women are preserved. (ref Annexure D-15 and D-16).

ADMITTEDLY Accused no 3 (Dr Nitin Seth) has nowhere claimed that he filled the form F of the Deponent. The Show Cause Notice sent to Dr Nitin Seth (Accused no 3) was for offence under Sec 5 and 6 of the P.N.D.T act. The show cause notice is indexed alongwith as Annexure D-12.

Infact the deponent filed an R.T.I application to Appropriate Authority, CDMO, North West Delhi; interalia asking about the evidence furnished by the offending doctor i.e. Dr Nitin Seth (Accused no 3) to prove that he has not conducted the sex determination on the deponent. In response thereof it was conceded by the Appropriate Authority vide reply dt 26/05/09 that except for the written statement of the doctor that he fills up form F in all cases, he has not been able to give any other evidence. The reply dated 26/05/09 is marked as Annexure D- 14

ADMITTEDLY the Petitioner is powerful and influential and it is because of the influential status of the petitioner that despite records not being maintained for the foetal ultrasound done upon the respondent no 2 at the centre of the Petitioner the authorities have not even bothered to issue notice to the petitioner. It is because of the influential status of the petitioner that it is the Deponent who has been running from pillar to post to take her fight for Justice to its logical conclusion. Thus if the Police and other Authorities did not take timely action, the Deponent can`t be made to suffer.

ADMITTEDLY – thus the onus as placed on the doctor and the establishment as per Section 4 (3) of the P.C-P.N.D.T Act has not been discharged either by the Dr Nitin Seth or the petitioner. Thus admittedly the responsibility of the petitioner as per Section 26 of the P.C-P.N.D.T Act has to be fastened on the petitioner.

ADMITTEDLY the ultrasound report of the Deponent does not have the required declaration that no sex determination has been done on her as required by rule 10 (1) A of the PNDT rule.

Hence, the petition is based on misconceived and misrepresented facts and hence liable to be quashed with exemplary costs.

PRAYER

It is therefore most respectfully prayed that

The Hon`ble court may kindly dismiss the Petition under filed by the petitioner under section 482 with heavy cost, and accused by directed/petitioner to appear before the trial court so that proceedings may expedite, as per the directions of Hon`ble Supreme Court;
Any other orders which this Hon`ble court deems fit and proper under the facts and circumstances of the case.

Respondent

New Delhi Through

Dated Counsel

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL MISC CASE NO 3128 OF 2011.

In the matter of

Dr. Harsh Mahajan …Petitioner

Versus

State NCT of Delhi and Another …Respondents

AFFIDAVIT

I, Mitu Khurana, wife of Dr. Kamal Khurana, aged about 36 years, resident of A-1/39, Janakpuri, New Delhi, do hereby solemnly state on oath as under:

That I am the Respondent No. 2 in the present case. I am fully conversant with the facts of the case and am competent to depose to that effect.
That the accompanying reply to the petition under Section 482 of the Code of Criminal Procedure, 1973 has been drafted under my instructions. I state that the facts stated therein are true and correct based on my knowledge and legal advice received. The contents of the accompanying reply to petition may be read as part and parcel of the present affidavit and the same are not being repeated herein for the sake of brevity.

DEPONENT

VERIFICATION:

Verified at New Delhi on April 2014 that the contents of the above affidavit are true and correct based on my knowledge and legal advice received. No part of it is false and nothing material has been concealed there from.

DEPONENT

CASE BRIEF SUBMITTED IN DEC 2015

Brief Synopsis on behalf of the respondent Dr Mitu Khurana

A. Admitted facts

1) Foetal ultrasound done on Dr Mitu Khurana/respondent no.2 on 28/4/2005 at Mahajan Imaging Centre Jaipur, Golden Hospital when gynaecologist had ordered ultrasound whole abdomen with KUB. Ultrasound Report dated 28.04.2005 annexed as Annexure P-2 has been admitted by the present petitioner as well as other petitioners who filed separate petition before this Hon’ble court and challenged the said order which is under challenge in the present petition.

2) That the said USG report does not give the mandatory declaration to be given at the end of every ultrasound report- violation of section 10(1)(a) of P.C-P.N.D.T act.

3) Para no 2 & 3 of Page 4 of present petition – Accepts that “the petitioner was a partner in the partnership firm Mahajan Diagnostics which was managing the radiological centre is at Jaipur Golden Hospital under the Name of Mahajan Imaging Centre.

4) Page C – Dr Niten Seth (radiologist who did the Ultrasound) was working in the centre of Dr Harsh Mahajan/ Petitioner.

5) Page 14- Para XIV- P.C-PNDT Act was not being followed by Jaipur Golden Hospital, Petitioner did not inform the authorities about the same. Violation-Rule 18(v) & 18(vii).

6) Page 14- Para XIV- P.C-PNDT Act- further admitted by the present petitioner that for the Month of April 2005, he sent the 103 Form F along with the list to the competent Authorities/ District Appropriate Authorities on his letter head under Rule 9(8) of the P.C-P.N.D.T Rule. B.

Common Objections
1) Records to maintain only for 2 years

Answer to Objection

a) 103 forms F submitted on 3rd May 2005 (i.e. 5 days after the ultrasound). Annexed as Annexure D-16 with Crl M.C.3128/2011 shows that the form F of Dr Mitu was not submitted to the authorities on 3rd May 2005.

b) Affidavit of State filed in case no Crl M.C.460/2010 which is Annex as Annexure D-20 with the reply of the petition filed by the respondent no.2.

Reference to Counter affidavit of grounds and facts- Point B– “Petitioner is misleading the Hon`ble High court ……..Jaipur Golden Hospital for the month of April 2005 are present in the records of CDMO (NW) office.”
This is a clear violation in keeping records which amounts to contravention of Rule 9(8) of P.C-P.N.D.T rules, and section 4,5 & 6 of P.C-P.N.D.T act and shows that a) The hospital tried to hide from Appropriate Authorities (CDMO) the fact that foetal ultrasound was done on Dr Dr Mitu Khurana.

b) Weeding of records after 2 years is lame excuse when form F of Dr Mitu Khurana was not submitted to appropriate authority on 03/05/05 (within a week from the date of Ultrasound). The record of the form F for April 2005 submitted by the Petitioner is available with the Appropriate Authorities.
Judgements relied on – 1. Suo Moto vs state of Gujarat , 2009 CRI. L. J. 721, (2009)1 GLR 64, MANU/GJ/0717/2008. 2. Dr. (Mrs.) Suhasini Umesh Karanjkar Vs. Kolhapur Municipal Corporation & Ors. (2011(4) AIR Bom R 326) 3. Dr. Kalpana Pundlik Jamdade vs The State of Maharashtra & Another crwp 406/2012 group.

2) Objection raised by the petitioner by challenging that Complaint after 3 years of USG and barred by Limitation
Answer to Objection- Ref Section 469 (1)c. of Cr.P.C.

Period Knowledge Complaint

29/04/05 to 11/08/05 Knowledge that the Husband and his family members knew the sex of the baby. This knowledge was based on the pressures being put on the Respondent no 2 for an abortion.Complaint– July 2005 to S.H.O, Janakpuri
FebMarch 06 Knowledge that sex determination was done, after acceptance of the same by the Petitioner in a drunk state. Complaint– 12/05/06 to S.H.O. Janakpuri & 9/06/06 to CAW cell.
March 2008- Knowledge that foetal ultrasound was done the respondent when she was admitted for allergy at Jaipur Golden Hospital.Complaint– 10/04/08 to Health minister, NCW, DCW etc & 19/04/08 to A.C.P, Crime against women cell.
08 May08 Knowledge that the authority under P.C-P.N.D.T act is the C.D.M.O, via email from central P.N.D.T department. Complaint-9/05/08 to Appropriate Authority under P.C-P.N.D.T act
July 2008 Knowledge that form F was not filled when the fetal ultrasound was done on the Respondent no 2 during her admission for allergy in Jaipur Golden Hospital. (definite knowledge of the place where the sex determination took place) Complaint-21/11/ 08 – Complaint in the Court of Metropolitan Magistrate.
5
Judgement relied on – a. State Of Maharashtra vs P.D. Pujari (1980) 82 BOMLR 6, 1979 CriLJ 1152 b. Subroto Kumar Dey v. The State of Punjab – CRM-68254- M-2005 [2007] RD-P&H 292

3) Following PNDT act in letter and spirit
Answer – The NIMC raided the Jaipur Golden Hospital and recovered the entire record of the period when offence has been committed, Report of raid on the Hospital is annex as D-10 with Crl M.C.3128/2011.Report shows violations of the act i.e.
Section 19 (4)), Rule 17(2),(Section 4(3), Rule 9(4) and Rule10(1A) & Referral forms not being attached with form F`s.

C. Other facts to be noted-

All the issues raised by the petitioner in the petition are matter of facts and need trial before the trial court.
The team from NIMC which conducted the raid on 03/06/06 have stated that they verified the complaint of Dr Mitu Khurana & thereafter asked the state to take appropriate action as per the law. Annexed as Annexure D-13.
The respondent no 2 issued statutory 15 days notice Appropriate Authorities on 18th October 2008 (Annexure D- 12 and D-18). Thereafter case was filed in the court of Metropolitan Magistrate on 21st November 2008.
Petitioner has an alternate and efficacious remedy to seek discharge from trial court by urging the pleas taken herein, therefore, this Court is not inclined to exercise its inherent jurisdiction under Section 482 of Cr.P.C (ref: Padal Venkata Rama Reddy Alias Ramu v. Kovvuri Satyanarayana Reddy & Ors. (2011) 12 SCC 437)